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as it is said, of the inconvenience that was possible to arise in' families from its being known that a person had made his will, it was adjudged by the court, that this was a sufficient execution.
According to these cases it not only appears to have been the opinion of the courts, that it was unnecessary that the witnesses should be privy to the contents of the will since the statute of Charles, (as it certainly appears to have been held upon the statute of Henry the Eighth,) but they seem to have carried the allowance beyond the cases, (loose as they appear to have been,) which were determined determined upon the statute of wills; for, as we learn from Swinburn, the authorities go no further than to shew, that one of the advantages of the written testament over the nuncupative method, (which was still permitted, where, by the customs of particular places, lands were devisable) was the opportunity it gave to the testator to make an effectual will, without disclosing the contents even to the witnesses, which was a concealment oftentimes of importance to the peace of families; but then the identity of the will ought to be proved: and therefore, it seems to have been a common idea with the writers upon the subject of wills previous to the statute 29 Car. 2., that the nature of the instrument or writing ought to be announced or published by the testator to the parties present.
A reliance upon the security derived from the at
testation by three credible witnesses in the presence of the testator, may account for the little importance attributed by some of the judges to the publication of the will by the testator; so little indeed, as to deem it unnecessary for him to announce or declare to the witnesses the nature of the instrument they were to sign.
In the case of Wallis v. Wallis', wherein both Trimmer v. Jackson, and Peate v. Ougley were cited, there seems to have been some doubt on the subject of publication. The case, however, though argued only at the assizes, shews the opinion of Mr. Justice Denison, as to the necessity for the witnesses to know what instrument they were signing, to be în correspondence with that of Lord Mansfield, and the judges who decided the case of Trimmer v. Jackson*.
THERE has been some diversity of opinion as of the age at to the age at which the testamentary capacity, as to
14 Burn. Eccl. L. 127.
which it takes place.
* But observe what was said by Lord Hardwicke as to the necessity for publication. 3 Atk. 161, Ross v. Ewer.
A will may be written on any material, or in any language, so as, if it concern property in England, it be framed with the solemvities required by the English law. Swinb. p. 4. S. 28. 1 Vern. 85.
Capacity of married women.
personal estate, takes place; but the doctrine that it
Regularly, a woman under coverture cannot make a will, either of lands or goods, not even of her paraphernalia, without the consent of her husband P. Though these become absolutely her's upon her husband's death, and in the mean time they are not subject to his disposition by will. But with the licence and consent of the husband a wife may make a testament of her own, and it is said, even of the husband's goods, Swinb. 89. but he may revoke the same, not only during her life, but, according to Swinburn, after her death, before the will is proved. If, however, he confirm it after her death, he can never afterwards depart from it. But that such an instrument is entitled to be called, in strictness, a will, has been doubted and denied. And, without such consent of the husband, the wife has no legal power of making any testamentary disposition of her own property, not even of her debts and choses in action, which are not divested out of her by the marriage, and do not survive to the husband. But she may make her husband her executor, and if she do not, and die in his life-time,
he is entitled to possess himself of her choses in action, as her administrator.
In equity, however, effect is frequently given to the testamentary dispositions of a wife, as where the husband stipulates that certain personal property shall be enjoyed by the wife separately, it shall be enjoyed by her with all its incidents, whereof the jus disponendi is one'. And where she has this power over the principal, she must necessarily also have it over its produce and accretions'.
Where she makes a will in execution of a power, though this is not in strictness a will, yet it is an act of a testamentary nature, and must be proved in the Spiritual Court, or the legatee cannot entitle himself in a court of law; and the course is not to give probate of the will, but administration with the will annexed, as a testamentary paper'. Before the case of Wright v. Cadogan", it was well established that a feme covert might have power to dispose of land by writing, in the nature of a will, so as to bind the heir, by reserving to herself such right by way of trust, or a power over an use; but, by that case, the doctrine was carried further; for there, articles having been entered into before marriage whereby it was stipulated by the husband that all the estate of his future wife, which she then had,
3 Bro. C. C. 8. Fettiplace v. Gorges.
* 2 Vern. Gore v. Knight, 2 Vern. 535. Prec. in Ch. 255. Dougl. 707, Stone v. Forsyth.
6 Bro. P. C. 156.
Mental incapa city, fraud, du
or which at any time should descend or devolve upon her, should be conveyed to her own use, and subject to her appointment, it was adjudged that an appointment executed by her in favour of her husband, and her children by him, was a good appointment against the heir, although no conveyance was ever executed, nor any fine levied of the reversion *.
No person who is not of a reasonable mind and sane memory can make any disposition by will; therefore an ideot, or person deprived of his faculties by extreme age, or by intoxication, while the paroxysm endures, is not of testable capacity in the law. For the same obvious reason a lunatic is incapable of disposing of his property by will, except in his lucid intervals, if they occur, and they must be calm and clear intermissions, attended with quietness and freedom of mind. And if a will by a lunatic be rationally drawn up, and the nature of the disorder be such as to afford any reasonable ground to suppose that a lucid interval may have prevailed, the very act itself furnishes an evidence not easily resisted of that sound and disposing mind which is necessary to its validity. As in the case of Cartwright v. Cartwright, Michaelmas, 1795, before the delegates, The proposition of Lord Thurlow in the Attorney General v. Parnther", that where lunacy was once established by clear evidence, the party ought to be restored to as perfect a state of mind as hẹ was in before his disorder, to make a good will
* See the notice taken of this case ip Doe v. Staple, 2 T. R. 684. y 3 Bro. C. C. 441.